R v Humphrys - [2018] SASCFC 69

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUMPHRYS
[2018] SASCFC 69
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Nicholson)
25 June 2018
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - AS OF RIGHT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
Appeal brought as of right by the Director of Public Prosecutions (SA) against a subsequent decision of another Judge of this Court dated 27 March 2018 to order the release on licence of the respondent, Mr Humphrys, on terms and conditions determined by the Parole Board pursuant to s 24 of the Criminal Law (Sentencing) Act 1988 (SA). The respondent was detained until further order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) by an order of a Judge of this Court made on 9 July 2009 after finding that the respondent was capable, but unwilling, to control his sexual instincts.
Held, per Kourakis CJ (Vanstone and Nicholson JJ agreeing), dismissing the appeal:
1.     The Judge had regard to all of the risks identified in the material before her (at [4]).
2.     The Judge's reasons were adequate having regard to the evidence and the forensic issues which her Honour was asked to resolve (at [6]).
3.    The Judge was not bound to consider separately a risk that fell within the generic risk of Mr Humphrys coming into an opportunity to re-offend when that particular risk was neither identified in the Offender Management Program matrix nor the subject matter of submissions or evidence (at [55]).
4.    The Judge expressly adverted to the psychiatric opinions on the respondent’s prognosis and accepted their opinions in that there was some, albeit very guarded, prospect for improvement in his willingness to control his sexual instincts if he were to be released (at [5] and [56]-[58]).
Criminal Law (Sentencing) Act 1988 (SA) (repealed) s 23, s 24; Sentencing Act 2017 (SA) ; UN General Assembly, International Covenant on Civil and Political Rights 16 December 1966, United Nations, Treaty Series, vol. 999, p. 17; UN General Assembly, Universal Declaration of Human Rights 10 December 1948, 217 A (III), referred to.
R v Schuster (2016) 125 SASR 388; R v Humphrys [2018] SASC 39, applied.

WORDS AND PHRASES CONSIDERED/DEFINED
"release on licence", "sentences of an indeterminate duration"

R v HUMPHRYS
[2018] SASCFC 69
Court of Criminal Appeal: Kourakis CJ, Vanstone and Nicholson JJ

KOURAKIS CJ: The respondent, Mr Colin Humphrys, was detained until further order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) [1] (the Sentencing Act) by order of a Judge of this Court made on 9 July 2009 after finding that Mr Humphrys was capable, but unwilling, to control his sexual instincts. This is an appeal brought as of right by the Director of Public Prosecutions against a subsequent decision of another Judge of this Court to order the release on licence of Mr Humphrys, on terms and conditions determined by the Parole Board pursuant to s 24 of the Sentencing Act.
[1] This Act was repealed on 29 April 2018. It has been replaced with the Sentencing Act 2017 (SA) carrying over in large part the sections related to sentences of indeterminate duration. See Division 5, the Sentencing Act 2017 (SA).
Section 24 of the Sentencing Act confers on this Court a discretion (the s 24 discretion) to release a person detained pursuant to s 23 of the Sentencing Act on licence, even if that person remains unwilling to control, or is incapable of controlling, his or her sexual instincts. The reasons for Parliament in conferring that discretion are obvious enough. First, the indefinite detention of an offender, even after he or she has served the condign punishment fitting his or her crime, is an exceptional deprivation of liberty which should not continue any longer than is strictly necessary. This accords with fundamental human rights of liberty and security of the person, stemming from the Conventions to which Australia is a party.[2] Secondly, counselling and therapy, necessary to address the root causes of an offender’s incapacity or unwillingness, cannot always be fully delivered in custody. Nonetheless, the paramount, but not the only, consideration in exercising the s 24 discretion is the safety of the community.[3]
[2] R v Schuster (2016) 125 SASR 388 at [86]-[88]. See UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III); UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p.17.
[3] Section 24(1b), Criminal Law (Sentencing) Act 1988 (SA).
The Director does not complain on this appeal that the material before the Judge did not reasonably support the order that was made. Indeed, the Director accepted before the Judge that a decision to release Mr Humphrys could reasonably be made on the material before the Court. The Director appeals only on the grounds that:
1The Judge wrongly failed to have regard to the nature and extent of Mr Humphrys’ unwillingness to control his sexual instincts in that the Judge failed to have regard to the risk that Mr Humphrys would deceive or manipulate those supervising him into allowing him an opportunity to offend; (the deceitful manipulation ground)
2The Judge failed to make any finding as to Mr Humphrys’ prospects of rehabilitation and to consider whether it would ever be appropriate for the order for detention to be discharged; (the rehabilitation ground) and
3The Judge erred in failing to provide adequate reasons for the decision. (the inadequate reasons ground)
I would dismiss the appeal. As to the deceitful manipulation ground, I first observe that the Judge expressly acknowledged that there was a high risk that Mr Humphrys would offend if given an opportunity to do so and referred to the risks, which included Mr Humphrys’ deceitfulness identified in a letter from the Parole Board, but ultimately found that the external controls foreshadowed by the Parole Board contained those risks within acceptable limits. The external controls proposed by the Parole Board included electronic GPS monitoring and the intense supervision of a Community Corrections officer. No evidence was led, nor submission made, to the Judge that there was a tangible, discrete risk that Mr Humphrys might deceive a Community Corrections officer into allowing him sufficient opportunity to re-offend. The Judge therefore had regard to all of the risks identified in the material before her.
As to the rehabilitation ground, the Judge expressly adverted to the psychiatric opinions on Mr Humphrys’ prognosis and accepted their opinions that there was some, albeit very guarded, prospect for improvement in his willingness to control his sexual instincts if he were to be released.
Finally, the Judge’s reasons were adequate having regard to the evidence and the forensic issues which her Honour was asked to resolve.
I elaborate on my reasons below.
The s 24 discretion
Section 24 of the Sentencing Act relevantly provides:
24—Release on licence
(1)The Supreme Court may, on application by the Director of Public Prosecutions or the person, authorise the release on licence of a person detained in custody under this Division.
(1a)The Supreme Court must, before determining an application under this section for the release on licence of a person detained in custody under this Division, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of the person and report to the Court on whether the person is incapable of controlling, or unwilling to control, his or her sexual instincts.
(1b)The paramount consideration of the Supreme Court when determining an application under this section for the release on licence of a person detained in custody under this Division must be the safety of the community.
(1c)The Supreme Court must also take the following matters into consideration when determining an application under this section for the release on licence of a person detained in custody under this Division:
(a)     the reports of the medical practitioners (as directed and nominated under subsection (1a)) furnished to the Court;
(b)     any relevant evidence or representations that the person may desire to put to the Court;
(c)     a report furnished to the Court by the appropriate board in accordance with the direction of the Court for the purposes of assisting the Court to determine the application, including—
(i)any opinion of the appropriate board[4] on the effect that the release on licence of the person would have on the safety of the community; and
[4]    In the case of Mr Humphrys, it is the Parole Board.
(ii)a report as to the probable circumstances of the person if the person is released on licence; and
(iii)the recommendation of the appropriate board as to whether the person should be released on licence;
(d)     evidence tendered to the Court of the estimated costs directly related to the release of the person on licence;
(e) the reports resulting from the periodic reviews under section 23(9) on the progress and circumstances of the person tendered to the Court;
(f)    any other report required by the Court under section 25;
(g)     any other matter that the Court thinks relevant.
…
(2)On the Supreme Court authorising the release of a person under subsection (1), the appropriate board must order the release of the person on licence on the day specified by the Court.
(2a)Subject to this Act, every release of a person on licence under this section is subject to the following conditions:
(a)     a condition prohibiting the person from possessing a firearm or ammunition (both within the meaning of the Firearms Act 2015) or any part of a firearm;
(b)     a condition requiring the person to submit to such tests (including testing without notice) for gunshot residue as may be reasonably required by a person or class of persons or body specified by the appropriate board.
(3)Without limiting subsection (2a), the release of a person on licence under this section will be subject to such conditions as the appropriate board thinks fit and specifies in the licence (including a condition that the person be monitored by use of an electronic device approved under section 4 of the Correctional Services Act 1982).
…
(5)     The appropriate board may—
(a)     on application by the Director of Public Prosecutions or the person, or of its own motion, vary or revoke a condition of a licence or impose further conditions; or
(b)     on application by the Director of Public Prosecutions, or of its own motion, cancel the release of a person on licence, if satisfied that the person has contravened, or is likely to contravene, a condition of the licence.
…
(11)Where a person has been subject to a licence under this section for a continuous period of three years, the order for his or her detention under this Division will, unless the Supreme Court, on application by the Director of Public Prosecutions, orders otherwise, be taken to have been discharged on the expiration of that period.
I emphasise, and repeat my earlier observation, that the question of the detention of a person pursuant to s 23 of the Sentencing Act, and any release on licence, only arises, in a practical sense, after the sentence imposed for his or her offending has been served. The discretion entrusted to this Court by s 24(1) of the Sentencing Act may usefully be contrasted with alternative ways in which the Parliament may have chosen to protect the community from persons incapable of controlling, or unwilling to control, their sexual instincts beyond the term of a sentence of imprisonment proportionate to their offending.
Parliament might have legislated that persons incapable or unwilling to control their sexual instincts should be detained and never released for so long as that condition persists. Alternatively, Parliament might have provided that such persons should not be released if there were any risk that they might offend again. The difficulty presented by those positions is that prison is necessarily a tightly controlled, and a closely regulated, environment. It is so completely unlike community life that there is a limit to the programs which can be delivered, as well as a limit on the capacity to test their effectiveness. The reality, therefore, of either of those positions is that, once detained for being either incapable or unwilling to control his or her sexual instincts, such persons will rarely, if ever, be released because their very detention will, for all practical purposes, preclude them from the treatment and rehabilitation processes necessary to show that they no longer present an appreciable risk to the community.
Yet another approach might have been to confer the power to order release on licence directly on the Governor in Council or on a board, like the Parole Board, but with a membership selected with the particular issue of persistent sexual offenders in mind. That approach would necessarily subject decisions to release on licence to a large degree of public accountability but, possibly, also to politicisation. It is an approach therefore which democratises decision making on the detention of persistent sexual offenders but at the risk of having the common law value of individual liberty overwhelmed by populism. Ensuring such a board’s independence from the influence of executive government when a particular case arises, and the conferral of a right of judicial review, in one form or another, could provide an effective counterbalance.
In enacting ss 23 and 24 of the Sentencing Act, Parliament eschewed those alternatives and chose instead to confer a judicial discretion on this Court. By so doing, Parliament must be taken to have intended that the courts would exercise the discretion consistently with the principle of legality, because that principle is fundamental to the exercise of judicial power. That principle requires this Court, subject to clear legislative direction to the contrary, to have regard to common law rights and liberties including the principle that restraints on liberty should not exceed that which is necessary and justifiable in a civilised society ordered by the rule of law. Ultimately, both the common law and s 24(1b) recognise that the safety of the community may provide that justification.
In R v Schuster[5] this Court explained the purpose of release on licence, and the considerations relevant to the s 24 discretion, as follows:
[76]The manifest purpose of a release on licence is to transition the person the subject of an order made pursuant to s 23 of the Act from custody into the community and, ultimately, if the transition is successful, to discharge the order of indefinite detention itself. The imposition of indefinite detention, not to punish for a crime actually committed, but for preventative purposes, is antithetical to common law and human rights principles. It is for that reason that in a democratic society, ordered by the rule of law and respectful of fundamental human rights, it is natural to find that a regime of indefinite preventative detention, like that established by Div 3, incorporates a mechanism for the discharge of the order through rehabilitation.
[77]Rehabilitation, and the prospect of discharge of a detention order as soon as it is no longer necessary to protect the community, are therefore relevant and important considerations on an application for release on licence even though they are not expressly mentioned. There need not be certainty that the detained person will be rehabilitated before release on licence is ordered. There can be no certainty in matters of this kind. However, the degree of confidence that the person will respond positively to rehabilitation will affect the weight to be given to this consideration which, since the Amendment Act, is subordinate to safety of the community.
[78]Safety of the community and rehabilitation are the competing factors at the core of the discretionary power to release on licence pursuant to s 24 of the Act, and at the core of the discretion to cancel previous orders for release on licence pursuant to Sch 2 of the Act. They are incommensurable considerations in that there is no formula for quantifying adverse risks to the community or positive prospects for rehabilitation, nor for standardising their weight. An evaluative exercise is demanded.
[79]What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to order release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility.
[80]More fundamentally, it is in the very nature of a discretion that the level of risk, whatever it is, may nonetheless be sufficiently outweighed by other factors to justify release on licence. For example, an offender with some degree of short term risk of reoffending who has excellent prospects of medium to long-term rehabilitation might be released on licence, when an offender with the same risk profile but poor prospects of rehabilitation would not. The effect of making public safety the paramount consideration is that, speaking generally, relatively smaller degrees of risk will outweigh considerations which, even strongly, support release. The exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety.
[5] (2016) 125 SASR 388.
I make the following additional observation. Section 24(11) of the Sentencing Act provides that after a person is released on licence for three years, without breach, the s 24 order for indefinite detention is discharged. That consideration reinforces the observation in [77] of the reasons of the Court in R v Schuster that a court should have some confidence that the person subject to the licensed release will respond positively to rehabilitation.
Plainly the measure which most effectively protects the community from persons who are incapable or unwilling to control their sexual instincts is continuing imprisonment. Nonetheless, Parliament has necessarily accepted, by conferring the s 24(1) discretion on this Court, that in some circumstances less secure measures may be appropriate and consistent with the requirements of public safety. According the safety of the community as the paramount consideration does not mean that a person who remains unwilling or unable to control his sexual instincts can never be released on licence. In very general terms, what it does mean is that, in weighing the interest of the detained person and his or her future rehabilitation, against the risks posed by his or her release on licence, the scales are heavily biased in favour of community protection.

In summary, the s 24 discretion should only be exercised to release on licence a person detained pursuant to s 23 when the risk to public safety can be contained within acceptable limits, whilst at the same time providing a more humane supervisory regime in which there is a reasonable prospect that the offender will come to exercise greater control over his or her sexual instincts. When a judge orders the release on licence of a person detained pursuant to s 24 of the Sentencing Act, he or she makes, after long and careful consideration, the judgment call with which Parliament has entrusted this Court. That judgment is the legal product of the application of s 24 of the Sentencing Act to the material placed before the Court and is not, and should not be seen as, the subjective choice of the Judge.
Relevant offending
Mr Humphrys has the following criminal antecedents:
·Gross indecency – Melbourne, Victoria 1974
·Indecent assault on male person and administering a drug with intent to commit an indictable offence – Sydney, New South Wales 1976
·Indecent assault – Melbourne, Victoria 1984
·Indecent assault – Melbourne, Victoria 1984
·Gross indecency with male – Melbourne, Victoria 1984
·Child stealing – Townsville, Queensland 1985
·Commit act of indecency towards a person under 16 years, homosexual intercourse with a male 10-18 years, attempted homosexual intercourse with a male 10-18 years – Sydney, New South Wales 1992.
The 1985 and 1992 offences were committed by Mr Humphrys befriending two young men aged 10 and 12 respectively and encouraging them to run away with him.
The offences, which resulted in the making of the order of indefinite detention against Mr Humphrys pursuant to s 23 of the Sentencing Act, were committed against one victim, AB, between October 2001 and March 2003 (the subject offending). AB was aged between 14 and 15 years at the time. Mr Humphrys met AB in a car park where AB was inhaling paint fumes. Mr Humphrys struck up a conversation with him and persuaded him to accompany him into a nearby toilet in which he sexually assaulted AB. Mr Humphrys subsequently embarked on an ongoing exploitative sexual relationship with AB in which he provided AB with gifts, alcohol, cigarettes and cannabis.
Mr Humphrys was eventually apprehended and, in September 2006, convicted in the District Court of five counts of unlawful sexual intercourse committed against AB over that period of time. Mr Humphrys was then referred to this Court for sentencing and for the making of an application pursuant to s 23 of the Sentencing Act. A Judge of this Court sentenced Mr Humphrys to imprisonment for 10 years, commencing on 3 December 2003. The sentence expired on 3 December 2013. In July 2009 the Judge also made an order of indefinite detention pursuant to s 23 of the Sentencing Act after finding that Mr Humphrys was unwilling to control his sexual instincts.
The Director, in submissions before the Judge, emphasised the pattern of grooming which characterised Mr Humphrys’ previous offending, referring to his ‘calculated efforts to instigate relationships with vulnerable young men (usually in their early teens), and to commence sexually abusing them within a short period of meeting them’. The recognition of Mr Humphrys’ particular modus operandi is important. It involves the cultivation of relationships with older children. Even though the subject offending commenced very quickly after Mr Humphrys’ first encounter with AB, finding an adolescent who is vulnerable to his wiles would generally require Mr Humphrys to loiter in areas frequented by youth. For that reason, the electronic monitoring of Mr Humphrys has the potential to minimise the risk of further offending. Mr Humphrys’ modus operandi is, in this respect, more manageable than an offender, of the kind considered in Schuster, who engages in spontaneous one‑off and short-lived offending against younger children by confronting them in places from which they cannot escape.
Personal circumstances
Mr Humphrys was born on 28 December 1951. As a child he was physically abused by his parents. Mr Humphrys claims that he was, himself, sexually abused by adults throughout his childhood. He left school at age 15. He worked in a boot making workshop and as a sewing machine mechanic. He completed an apprenticeship as a baker at age 18. He enlisted but was discharged from National Service on the ground of his homosexuality. He then moved to Adelaide and later Melbourne and Sydney, adopting a peripatetic lifestyle. As an adult he has had intermittent employment as a baker and in hospitality, but it has been frequently interrupted by terms of imprisonment.
The psychiatric evidence
The Judge received reports from two psychiatrists, Dr William Brereton and Dr Ian Jennings. I set out below the conclusions reached by Dr Brereton in his report dated 19 October 2015 with my underlining of its salient aspects:
6.1… He was clear that he should no longer try to justify what he did or dismiss assessments of his risk because of mistakes of minor detail. Mr Humphrys was able to express a better understanding of the power imbalance involved in an adult having a sexual relationship with a child. Mr Humphrys appeared to accept that he does represent an ongoing risk and will need professional support, therapy and monitoring if released.
6.2I accepted Mr Humphrys’ report of a shift in thinking; he appeared earnest. However I am mindful of the fact that he has persistently offended in the community and shown problematic attitudes regarding his offending that have been entrenched for many years. I cannot rule out the possibility he has simply developed a better understanding of the reservations expressed in reports about his presentation and used that to present himself in a better light. I believe there is value in his having further sex offender treatment in prison or in the community to build on the apparent improvement in his outlook. He has expressed concern about unhelpful aspects of groups he has attended (4.13) and I believe he should be assessed for 1:1 specialist therapy or, if his concerns are thought invalid (e.g. a form of avoidance), further group therapy. I am troubled that an individual may be detained indefinitely until showing improvement in risk but then have difficulty accessing help to moderate that risk.
6.3Mr Humphrys still has a great deal of difficulty discussing personal sexual matters which indicates that, although he reports he understands the importance of talking to professional if he were to have thoughts or urges to offend, in practise I believe he would find this difficult (both in terms of his recognition of aberrant thoughts and his ability to then report or discuss them).
6.4Mr Humphrys improvement in his cognitive distortions appears rudimentary. While able to articulate that justifying his offending is wrong, he still has difficulty understanding the potential effects of his offending against children from an emotional perspective. He accepts his offending is wrong and has caused suffering but his appreciation of that suffering is limited (e.g. 4.9 & 4.10). Mr Humphrys [sic] still manifests a tendency to try and rationalise (e.g. 4.12) and minimise (e.g. 4.14 & 4.15) his offending.
6.5I remain sceptical of Mr Humphrys’ assertion that he does not have any libido and, with persistent questioning, he was able to describe circumstances in which he experiences sexual urges (4.24). With regards to his risk, I am not reassured by Mr Humphrys’ assertion that he is no longer able to function sexually. It is not a prerequisite for sexual offending in any case.
6.6In terms of Section 23 of the Criminal Law Sentencing Act, I remain of the opinion that there is significant risk that Mr Humphrys would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts.
6.7I remain of the opinion that Mr Humphrys is a high risk of reoffending. However I believe he is unlikely to offend immediately on release from prison and that his risk could be greatly reduced with treatment, monitoring and supervision in the community (please see paragraphs 13.16 and 13.17 of my previous report).
It can be seen that Dr Brereton identified a significant risk that Mr Humphrys would re-offend ‘given an opportunity’ but did not expressly refer to Mr Humphrys deceitfully engineering such an opportunity. Importantly, in [6.7] Dr Brereton thought that Mr Humphrys was unlikely to re-offend in the short term and that the longer term risk could be greatly reduced by ‘treatment monitoring and supervision in the community’. The reduction of the risk of re‑offending, by treatment in the community, is a rehabilitative step.
In an addendum provided by email on 7 March 2018, Dr Brereton reported:
My previous opinion regarding Mr Humphrys has been essentially that he represents a significant risk of re-offending given his history and long standing cognitive distortions. He has made gains with therapy but not always sustained these. More recently he has been better able to identify his cognitive distortions and accept that broader society views these matters differently, even if he does not always appreciate why. In addition, Mr Humphrys has been increasingly motivated to leave, and remain out of, prison. In order to achieve this, he has apparently come to accept that he will need to comply with a variety of restrictions. You correctly paraphrased part of my opinion as follows, “… whilst Mr Humphrys is presently motivated to cease offending, he is at risk of doing so in circumstances where the opportunity may present itself.”
(underlining added)
…
On 31.5.17, Hayley Mills, A/Deputy Chief Executive, DCS, provided a summary of the discharge plans formulated by a working group. This was detailed and included observations about the need for thorough monitoring (although not a specific need for 24/7 monitoring, given the nature of his past offending). It noted Mr Humphrys had consented to anti-libidinal medication and received his first 3-monthly injection of Depo‑Provera in May 2017. 1:1 private psychology follow up was proposed for the community and the importance of psychosocial support identified. It was observed that Mr Humphrys’ self‑management plan was “extremely comprehensive and well developed.”
…
I believe the plans for managing Mr Humphrys in the community, formulated under the Offender Management Plan, and the draft conditions referred to in the Parole Board’s letter of 22.8.16, are appropriate. In essence, the following is proposed: suitable housing; electronic monitoring; CCO supervision; ongoing psychology; restrictions regarding geography, associations & use of technology; prohibition of substances and testing; ANCOR involvement; anti‑libidinal medication and psychiatric follow up; and psychosocial support. This appears to be a comprehensive plan. Given that Mr Humphrys has made some gains in terms of his thinking, motivation and cooperation with services, I believe it is reasonable to attempt to manage him in the community under these conditions. However risk cannot be eliminated and I accept that the Parole Board do not believe there are enough resources to manage him safely in the community. …
(underlining added)
Dr Brereton also gave evidence on the hearing of the application. The Director substantially relied on the following passage of his testimony:
A.I think that at the moment he's sufficiently motivated. If he was fresh out of prison he would be very motivated not to return back to prison. I think he would probably effectively keep himself out of risky situations. I think you are quite right, I think it is the most pertinent question to ask can he and can external controls help to keep him away from the opportunities to re-offend. My fear is that with the kind of distorted thinking patterns that he has, which is that he tends to see himself as the victim of circumstance so he doesn't have a sense of control over his own decision making and behaviour, he tends to see himself as an opportunistic offender rather than somebody who has very clearly found and executed lengthy periods of abuse and he doesn't appreciate that he is a man with distorted sexual preferences. He thinks he is a victim of circumstances that he has ended up with an individual who has then been sexually active and he has fallen into it. So my fear is that without understanding all his own risks that over the longer term he will get himself into a position of having the opportunity to offend again. So I think there is a period of time his risk will be lower, fresh out of prison he could be highly motivated but unless some of those internal controls can be worked on or unless those external controls consistently are effective over a long period of time his risk will go up, will be high.
I observe first that there is little reason to read the statement ‘he will get himself into a position of having the opportunity to offend again’ as meaning much more than ‘find himself with an opportunity to offend again’. In the context of Dr Brereton’s reports of 24 March 2014, 19 October 2015, his addendum report provided by email dated 7 March 2018, and Dr Brereton’s testimony as a whole, Dr Brereton was doing no more than acknowledging the importance of imposing external controls which stopped Mr Humphrys frequenting and loitering in those places in which he might make contact with vulnerable children, howsoever that opportunity might arise. Certainly Dr Brereton did not refer to any ‘engineering’ by Mr Humphrys to ‘get himself … the opportunity’. Nor did counsel for the Director, by subsequent questioning, enquire about any such process.
Dr Jennings’ reported (with my underlining):
On overall assessment, as a result of these two significant changes in his circumstances, I would believe Mr Humphrys’ risk of re-offending to be significantly reduced. It is hard to be more specific about his risk for re-offending, as he has been incarcerated for over ten years, with no opportunity to assess his level of functioning outside of prison. However Mr Humphrys is expecting to continue with treatment through the Owenia House Community Programme, and the fact that he was an active participant with the Sexual Behaviours Clinic Programme, would indicate a positive engagement with ongoing treatment outside of prison. Ongoing management through Owenia House would be essential to ensure Mr Humphrys maintains his cognitive strategies to minimise future offending, and to assess his ongoing behaviour and cognitive processes for any indication of him reverting to previous behavioural and thought processes. Although it is difficult to more specific, overall I would anticipate Mr Humphrys being in a far better position to willingly control his sexual instincts.
(underlining added)
The underlined passages express Dr Jennings’ guarded opinion as Mr Humphrys’ prospects of rehabilitation.
The Parole Board
On 29 January 2018 the Parole Board provided a report to the Judge. I have underlined the passages which address the Parole Board’s identification of the risks posed by Mr Humphrys’ release on licence:
In our view, Mr Humphrys presents an unacceptable risk to the safety of the community if released on licence. He is assessed as being at very high risk of sexual re-offending. Notwithstanding that he has undertaken the Sexual Behaviour Clinic Program and may have developed some insight into his offending, he continues to represent a risk. In the opinion of the Parole Board, Mr Humphrys is an intelligent man who has learned to represent himself favourably to authority. As a result of interaction with Mr Humphrys over many years, and including interviewing Mr Humphrys, we consider that he remains less than honest about his sexuality and continues to minimise and rationalise his offending behaviour. Given that he is evasive about his sexual orientation, and not prepared to acknowledge it openly, the Parole Board is still of the view that he would, if the opportunity presented itself, continue to prey on vulnerable young men.
He also has a long history of sexual offending and a history of non‑compliance, dishonesty and deception. If released on licence, it is our view that he would not be open and honest with his Community Corrections Officer, and there are insufficient safeguards that could be put in place to verify that he is behaving responsibly and appropriately.
If he were released on licence, appropriate accommodation would need to be found and, with Mr Humphrys’ history, that in itself would be a challenge. He would need to be placed in an area where he did not have access vulnerable young people. He also attributes some of his offending to a sense of isolation. There is no particular facility where Mr Humphrys could be placed where he would have a level of supervision, other than possibly an OARS hostel. He would require electronic monitoring, which could either take the form of essentially home detention where he would require an authorised pass before leaving the premises or, alternatively, a level of electronic monitoring where his actual geographical whereabouts could be ascertained. The latter would not necessarily provide a mechanism to ensure that he was not engaging in, or intending to engage in, the offending behaviour.
The Parole Board is mindful of the consequences to the individual of indeterminate detention, but we are charged with a focus on community safety and we are not confident that we could effectively, through the resources of Community Corrections or otherwise, minimise the risk to a satisfactory level if he were to be released on licence. I have noted Dr Brereton’s comment in 2015 that Mr Humphrys remains at a high risk of re-offending, but that could be managed in the community through treatment and otherwise. In our view, the resources either through the Offenders Management Plan or Community Corrections, are insufficient to manage that level of risk.
Again, I make several observations on the connection between the underlined passages and the grounds of appeal. First, it is not suggested that the Judge was not cognisant of the Parole Board’s opinion that there was a high risk that Mr Humphrys would re-offend, and that no external controls could sufficiently guard against it. Indeed, the Judge, as we shall see, expressly referred to the Parole Board’s view. Based on all of the evidence, including the evidence of the psychiatrists, the Judge took a different view. No complaint is made that the Judge could not reasonably have done so on the evidential material adduced on the application.
Secondly, Mr Humphrys’ long-standing tendency to minimise his offending and his deviant sexual instincts were also clearly stated in the report to the Parole Board, to which the Judge expressly referred. Moreover, the material adduced on the application was replete with references to that tendency and it is, in any event, a common and well known trait of offenders of this kind. There is no reason to think that the Judge did not give it anxious consideration.[6] However, importantly, the Parole Board did not report that Mr Humphrys’ ability to deceive Community Corrections officers posed a discrete substantial risk and did not express a concern that Mr Humphrys might ‘engineer’ himself into an opportunity to offend against a child.
[6] R v Humphrys [2018] SASC 39 at [55].
Rather, the Parole Board was concerned that Mr Humphrys would not be openly honest with his Community Corrections officer about ‘his sexuality’ and that he would continue ‘to minimise and rationalise his offending behaviour’. However, the Parole Board did not express any concern that Mr Humphrys might deceive a supervisor into allowing him an opportunity to re-offend. Indeed, it would be surprising if the Department of Correctional Services did not have training, continuing professional development and staff supervision programs in place to guard against such risks. No evidence was adduced, or submission made, that there was a material risk that Mr Humphrys might inveigle his supervisors to allow him access to children or to the places vulnerable children might frequent.

Thirdly, as will shortly be seen, the Judge carefully considered a risk assessment matrix which addressed the degree to which supervision and electronic monitoring could contain the risk of further offending. On that assessment, and all of the other evidence, including the opinions of the psychiatrists, the Judge reached a different conclusion to the Parole Board. Again, it is not contended that the material was not sufficient to support that conclusion.
The conditions proposed by the Parole Board were:
●That you be subject to electronic monitoring. Upon your release from custody the Parole Board directs that you be subject to an intensive supervision regime with the Intensive Compliance Unit (ICU), including electronic monitoring for such time as the Parole Board shall determine, and that you obey all directions, requirements and rules of the ICU program, and comply with the directions of the ICU officer under whose supervision you are placed. You are directed to travel directly to [address] on your release and immediately telephone the ICU Office on [telephone number].
●That you report weekly in person to, and meet with, the Community Corrections Officer under whose supervision you have from time to time been placed and this is not to be varied without the approval of the Parole Board.
●That you undertake and complete a psychological assessment at the direction of your Community Corrections Officer and that you thereafter undertake and co-operate with such treatment as is recommended.
●That you not provide or offer accommodation to a child who is not related to you by blood or marriage or of whom you do not have lawful custody.
●That you not loiter without reasonable excuse, at or in the vicinity of a school, public toilet, playground or place at which children are regularly present at the school, toilet, playground or place.
●That you not undertake any remunerated or voluntary work with children or participate in any organisation which provides recreational, social, educational or other facilities for children.
●That you take all steps necessary to comply with the requirements of the Australian National Child Offender Register (ANCOR).
●That you attend for counselling at Owenia House (previously Sexual Offenders Treatment and Assessment Program) and that you co-operate with and complete any program there as directed by the Parole Board, and the Parole Board so directs.
●That you do not contact, attempt to contact or associate in any way, whether directly or indirectly, any person under the age of sixteen (16) years, unless your Community Corrections Officer is present, or a person nominated by your Community Corrections Officer is present.
●That you not use or be linked to any computer network or any equipment with access to the internet/or social media and that you not enter that part of any premises in which an internet facility is provided for use by the public.
●That you do not possess or use any video or still camera or other recording device including a camera equipped mobile phone.
●That you do not possess or use any photographic equipment without the prior written permission of your Community Corrections Officer.
●That you do not enter upon or remain upon the premises of any licensed hotel, licensed club or licensed entertainment venue.
●That you abstain from alcohol.
●That you submit to any breath testing analysis as directed by your Community Corrections Officer.
●That you follow your Community Corrections Officer’s direction in relation to the people with whom you associate.
The Offender Management Plan (OMP)
The Judge was provided with a risk assessment matrix on Mr Humphrys’ proposed release, prepared by a committee of criminal justice agency representatives (the OMP committee) who are called on to prepare an Offender Management Plan (OMP) when a person detained pursuant to s 23 of the Sentencing Act applies for release on licence pursuant to s 24 of the Sentencing Act. It is the function of the OMP committee to identify, and individually case manage, serious and adult offenders who present the most harm to the community. The coordinator of the OMP committee, Police Sergeant Martin Hayter, provided the matrix under cover of a letter to the Director of Public Prosecutions on 20 March 2018, who then provided it to the Judge. The matrix identified a series of risks posed by Mr Humphrys’ release and identified both the likelihood of the risk eventuating and the consequence if it did. The likelihood that a risk would eventuate was graded as: almost certain, likely, possible, unlikely or rare. The potential consequences of a risk, if it materialised, were assessed as: insignificant, minor, moderate, major or catastrophic.
Seven risks were identified as both unlikely and minor.
The risk that Mr Humphrys might make contact with children in a parkland area not far from his proposed address was graded as unlikely but assessed as having moderate consequences. The OMP reported, however, that the risk could be contained by measures including establishing proper communications between South Australia Police (SAPOL) and the Department of Correctional Services and by police adequately patrolling exclusion zones on Mr Humphrys’ electronic monitoring. The risk that Mr Humphrys might make contact with vulnerable children at a nearby community school was assessed as having moderate consequences but was graded as unlikely because of the distance of the school from the proposed residence, and because that risk could be managed by the same measures. It is necessary to spell out, given the Director’s first ground of appeal, that the risks so identified necessarily encompass any means by which Mr Humphrys might get himself to the school or park grounds and loiter there for the purpose of offending. Those means necessarily extend from the most simple and blatant act of absconding, with or without removing his bracelet, to using a pretext to obtain permission to do so. Any and all of those means are encompassed within the risk identified in the OMP risk assessment matrix which was addressed by the Judge. The means by which Mr Humphrys might get to those areas are not differentiated in the matrix, and if they were, the possibility of Mr Humphrys being given permission to access those areas would necessarily have been graded somewhere below rare, and the proposed prophylactic measure would have been something as simple and obvious as directing Community Corrections officers never to give Mr Humphrys permission to loiter in the vicinity of a park or school.
The failure of the electronic monitoring equipment through power failure or tampering was identified as possible and assessed, obviously enough, as having major consequences if it materialised. However, the OMP committee thought that risk too could be managed in the following ways:
All agencies to have tested trigger plans ready for such an occurrence and staff allocated to deal with incidents to receive briefings. Equipment currently in use in DCS is tried and tested and believed to be suitable for use.
The OMP committee also observed that the risk could be managed by the Department of Correctional Services ensuring proper compliance and by having in place a trigger plan, and the police having in place a plan for a ready response.
The Director’s submissions
The Director accepted before the Judge that the evidence showed that there was no additional treatment available to Mr Humphrys in custody which might progress his rehabilitation, or, at least, reduce the risk of his re-offending. The Director also made the written submission that:
… serious consideration must be given to a regime for the applicant’s release into the community that minimises the risk as much as possible, having regard also to the safety of the community as the paramount consideration. The applicant’s interests are relevant.
The Director submitted that there was a risk of Mr Humphrys offending ‘if the opportunity presented itself, or, the applicant [put] himself into a position of having the opportunity to offend again’.
The Director identified the primary question to be whether the ‘external controls’ that may be put in place would deny Mr Humphrys opportunities to re‑offend. After identifying some of the proposed controls, the Director’s written submissions continued:
24.Nevertheless, the respondent submits that the paramount consideration is unable to be met. The respondent notes the Parole Board’s advice to the court that in its view the resources either through the Offender Management Plan or Community Corrections are insufficient to manage the level of risk posed by the applicant.[7]
25.In particular, the Parole Board’s view is that, if released, the applicant would most likely not be open and honest with those supervising him, and that there are insufficient safeguards that could be put in place to verify that the applicant is behaving responsibly and appropriately.[8]
…
28.Whilst rehabilitation is an important consideration in any decision about release under s 24 of the Sentencing Act[9], there is no evidence that gives confidence that the applicant’s release would promote rehabilitation.[10]
29.In summary, the respondent submits that the applicant’s release on licence cannot adequately address the high risk of reoffending posed by the applicant such that the paramount consideration of the safety of the community is met. Therefore, the respondent submits that the Court ought not to grant the application.
[7]    Parole Board’s report dated 29 January 2018.
[8]    Parole Board’s report dated 29 January 2018.
[9]    R v Shuster (2016) 125 SASR 388 at [77]-[78], [80].
[10] As opposed to material which suggests that there is a risk there will be regression if he is not released: see Dr Jennings’ evidence on 23 March 2016 at T31, Dr Brereton’s evidence on 12 July 2016 at T11-12.
The Director also provided further written submissions in July 2016. They addressed the views expressed by Dr Brereton and Dr Jennings that with time the applicant may place himself in circumstances in which he would be tempted to re-offend and referred to their opinions that M Humphrys may re-offend if given an opportunity to do so. The Director referred to Dr Brereton’s identification of the critical question to be whether Mr Humphrys had developed a sufficient understanding of the wrongs of his offending to resist either putting himself in a situation where he might find an opportunity to do so, or looking for an opportunity.
The Director concluded:
39.The evidence clearly demonstrates that the applicant remains at high risk of sexual reoffending despite apparent recent gains following treatment. A residual uncertainty about whether the applicant has in fact made those gains contributes to that high level of risk.
40.The applicant is unwilling to control his sexual instincts, in that there is a significant risk that he would fail to exercise appropriate control of his sexual instincts if given an opportunity to commit a relevant offence.
41.Further, the Court must take into account that the risk is not only that the applicant would reoffend if the opportunity presented itself to him, but also the risk that he applicant would place himself in a situation that would give him opportunity to offend again.
42.The safety of the community is to be afforded paramountcy. If release on licence poses a significant risk to the safety of the community then there can be no such release.
The Director’s submissions did not elaborate on what was encompassed within the risk that Mr Humphrys ‘would place himself in a situation that would give him opportunity to offend again’. In the context of the issues raised by the evidential material adduced on the application, it must refer to the risk that Mr Humphrys would actively seek such opportunities, rather than simply taking advantage of an opportunity to offend against a child unfortunate enough to cross his path. That risk was canvassed in detail in the OMP risk assessment. The Director did not make a submission that the opportunity might be engineered by deceit.
The Judge’s reasons
The Judge, early in her discussion of the issues presented by the application, referred to and set out a large part of the letter from the Parole Board dated 22 August 2016.
The Judge carefully summarised the reports and evidence of Drs Brereton and Jennings. The Judge recognised that both psychiatrists were of the opinion that Mr Humphrys remained unwilling to control his sexual instincts and that Mr Humphrys would, given an ‘opportunity’, re‑offend. The Judge expressly noted their opinions that Mr Humphrys remained unwilling to control his sexual instincts.
The Judge extensively reviewed the OMP risk assessment matrix and, in particular, the measures proposed to contain the more likely of the risks.
The Judge summarised the conditions prepared by the Parole Board as follows:
[46]To summarise, the proposed conditions include that the applicant will wear a tracking device, will be in company with workers when he is absent from his address, will continue to take the anti-libidinal medication recommended by the psychiatrists, will not communicate with or be in the company of any child, will not have drugs or alcohol and be subject to random tests in relation to the same, and will travel straight from prison to the location where the intensive compliance unit regime will commence immediately.
The Judge acknowledged that the Parole Board had consistently opposed Mr Humphrys’ release irrespective of the strictness of any supervisory regime.[11] The Judge also expressly accepted that the risk that Mr Humphrys might abscond could not be eliminated. The Judge accepted also that there were other risk factors which the Parole Board had identified.[12] Nonetheless, the Judge concluded:
[11] R v Humphrys [2018] SASC 39 at [47].
[12] R v Humphrys [2018] SASC 39 at [49].
[49]I accept that absconding will always be a risk with regard to the release of any offender and that is a risk that will never be eliminated. I also accept that there are a number of risk factors in relation to the applicant which the Parole Board has identified repeatedly.
…
[50]Unlike other applicants, in particular the applicant in Schuster, this applicant has never had the opportunity to demonstrate his capacity to comply with licence conditions. It is one of the matters which concern both Dr Jennings and Dr Brereton who have examined the applicant and reported on him more than twice in the last two years. Both psychiatrists, while expressing cautious and conservative opinions as to the applicant’s prognosis, echoed the same concern that if this applicant is not given the opportunity to demonstrate his capacity to comply with terms and conditions on release, it is unlikely that he will ever be in a better position than he is today.
[51]I am satisfied from the report I received on 2 January 2018 from the OMP that considerable work has already been put into preparing the applicant for conditional release. That preparation includes the voluntary assumption by him of responsibility to continue taking anti-libidinal medication, counselling, engagement with a social worker employed by OARS regarding accommodation and the support of “Second Chances SA” who are prepared to provide ongoing support and mentorship should the applicant be released.
…
[53]In this respect the OMP states that it has developed a specific case plan for regular review of the applicant’s emotional and mental stability, his associations, his drug and alcohol use, his attitudes, his housing and accommodation, his finances, his academic and vocational requirements and his gambling.
…
[55]I am acutely conscious of the responsibility reposed in this Court for the determination of this application. Safety of the community is the paramount consideration which I must take into account on this application.
[56]I acknowledge the submission of both counsel for the Director and the Parole Board that the risk posed by the applicant is so great that this consideration cannot be adequately met by any conditional release on any terms.
[57]Nevertheless, from the material which has been provided to me which I consider has comprehensively identified what steps will be taken by the DCS and associated agencies to support the applicant’s release that many of the identified risks are significantly reduced by the proposed regime. I am also acutely conscious that in exercising the discretion reposed in the Court, it is my duty to exercise that discretion having regard to both the interests of the community and the interests of the applicant. It is unquestionable that the consideration of the community’s safety is the paramount consideration. Taking all of these matters into account I am satisfied that in this applicant’s case it is appropriate to exercise the discretion in favour of his release taking into account all of the terms and conditions proposed by the Parole Board. I do not consider that the point has been reached with regard to this particular applicant that it is as yet appropriate to incarcerate him in all probability for the rest of his natural life because he has been found unable or unwilling to control his sexual instincts. There is enough material supporting release on a strict regime for me to consider that the community can be adequately protected by the regime proposed to be put in place immediately on his release.
Relevantly to the Director’s prospects of rehabilitation ground, I draw attention to [50] of the Judge’s conclusion. In that paragraph, the Judge does not merely observe that very little more can be done to address Mr Humphrys’ unwillingness to control his sexual instincts whilst he is imprisoned. The Judge refers to two further relevant and important considerations. First, the Judge accepts the psychiatric evidence that the time is right to test the effectiveness of the programs already provided by a strictly controlled regime of release on licence. Secondly, the Judge accepts the opinions of the psychiatrists that notwithstanding the need for caution, there are some prospects of improvement in Mr Humphrys’ condition from treatment whilst on licence.
Relevantly to the Director’s deceitful manipulation ground, in [46] and [49] of the Judge’s reasons, her Honour expressly considers the risks identified by the Parole Board, and in [56] to the Director’s and the Board’s position that the measures proposed could not adequately contain those risks. However, the Judge expressed, as she was entitled to do, on the evidential material before the Court, a contrary conclusion in the very next paragraph of the reasons.
Discussion
In his written submissions to this Court, the Solicitor-General, appearing for the Director, emphasised Dr Brereton’s testimony that Mr Humphrys might, over time, ‘put himself’ into the position where he may have the opportunity to offend and the Parole Board’s expression of concern about Mr Humphrys’ tendency to be dishonest in reporting to Community Corrections officers. The Solicitor-General contended that the Judge did not have regard to the risk that Mr Humphrys might ‘engineer’ a situation to give himself opportunity to re‑offend. The Solicitor-General argued that the Judge had only considered the risk of an opportunity haplessly arising.
I acknowledge that the Judge did not expressly refer, in precise terms, to Mr Humphrys putting himself in a position where an opportunity might arise. Nonetheless, the Director’s submission should be rejected. There is no more than a semantic difference between the risks expressly considered by the Judge and the form of expression used testimonially by Dr Brereton. The semantic distinction relied on does not reflect any qualitatively different risk to the risks addressed by the Judge. A holistic reading of the Judge’s reasons reveals that the Judge addressed both those opportunities which might arise adventitiously and those opportunities that Mr Humphrys might himself ‘engineer’. Very obvious examples of the latter are the risks, expressly identified by the OMP risk matrix, that Mr Humphrys might deliberately visit and loiter about the park and school in the vicinity of his proposed residence.

As I earlier observed, Mr Humphrys might get himself to public places in any number of ways, from going there without permission to persuading a supervising Community Corrections officer to give him permission to do so. The latter means risk was apparently not considered significant enough to warrant separate consideration in the OMP risk matrix.
In any event, such a risk can only be described as remote. I cannot imagine that any persons assigned to supervise Mr Humphrys would not be made fully aware of his tendency to minimise his offending, his tendency to cultivate relationships with young males and his capacity for deceit and manipulation. I would also expect that the Department of Correctional Services to have rigorous systems in place to ensure that its officers are monitored and rotated to ensure that they do not become susceptible to Mr Humphry’s wiles. Certainly, no evidence was adduced that the Department could not be entrusted to provide close rigorous supervision of Mr Humphrys. The Director did not submit, on the application before the Judge, that the Judge should not have confidence in the capacity of the supervisory regime that would be established under the auspices of the terms and conditions imposed by the Parole Board to see through Mr Humphrys’ tendency to mislead others about his sexual tendencies. If that were the Director’s case, Mr Humphrys may have called evidence to rebut it.
The Judge was not bound to consider separately a risk that fell within the generic risk of Mr Humphrys coming into an opportunity to re-offend, when that particular risk was neither identified in the OMP matrix nor the subject matter of submissions or evidence. For the reasons I have given, I would dismiss the deceitful manipulation ground of appeal.
As to the rehabilitation ground of appeal, the Solicitor-General relied on the following paragraphs of the judgment of this Court in R v Schuster:[13]
[77]Rehabilitation, and the prospect of discharge of a detention order as soon as it is no longer necessary to protect the community, are therefore relevant and important considerations on an application for release on licence even though they are not expressly mentioned. There need not be certainty that the detained person will be rehabilitated before release on licence is ordered. There can be no certainty in matters of this kind. However, the degree of confidence that the person will respond positively to rehabilitation will affect the weight to be given to this consideration which, since the Amendment Act, is subordinate to safety of the community.
…
[112]For the reasons given above, Mr Schuster's prospects of rehabilitation were a relevant factor to be considered. However, the judge made no finding that Mr Schuster's prospects of rehabilitation were good. His Honour made only the negative finding that incarceration would not improve Mr Schuster's prognosis and concluded by remarking that if release on licence were refused Mr Schuster “would be condemned to spending most if not all of the remainder of his life in custody”. This reference suggests that his Honour regarded this factor at least as important as, if not more important than, the safety of the community.
[113]The absence of consideration of the level of Mr Schuster's prospects of rehabilitation vitiated the exercise of his discretion.
[13] (2016) 125 SASR 388.
The error identified in those passages is a failure to consider the future prospects of rehabilitation and the according to Mr Schuster’s plight the same weight as the requirement to protect the community. The observation, in that case, that the Judge had not made a finding that the prospects of rehabilitation were ‘good’ should not be read as a requirement that such a finding is a necessary pre-condition to release, even though for the reasons I give in [14]-[16] above, the prospects of rehabilitation in the three year period of the licence is an important consideration. The error identified in R v Schuster[14] was a failure to consider the rehabilitative purpose and prospects of a release on licence.
[14] (2016) 125 SASR 388.
In this case the Judge expressly referred to the cautious and conservative opinions as to Mr Humphrys’ prognosis. That prognosis was that there was scope to work on Mr Humphrys’ unwillingness to control his sexual instincts whilst he was on a s 24 licence. It is plain therefore that the Judge had regard to the possibility of some improvement in his condition, and in that respect expressly referred to Mr Humphrys’ assumption of the responsibility of taking anti-libidinal medication.[15] Moreover, a release on licence to test the efficacy of programs delivered in custody is in itself a step in the rehabilitation of a persistent sexual offender. The Judge expressly referred to that purpose.[16]
[15] [2018] SASC 39 at [51].
[16] [2018] SASC 39 at [50].
The rehabilitation ground of appeal must also be dismissed.
The inadequate reasons ground is linked to the errors alleged in the first two grounds. On the risk of deceitful manipulation, it follows from the conclusion that the Judge was not required to give it separate consideration. The Judge’s reasons are not in this respect inadequate. On the question of the prospects of rehabilitation, the Judge adequately explained the reasons for finding there to be some rehabilitative purpose in Mr Humphrys’ release.[17]
[17] [2018] SASC 39 at [50].
The inadequate reasons ground must also be dismissed.
Orders
I would dismiss the appeal.
VANSTONE J: I agree that the appeal must fail.
As the Chief Justice has noted, the Solicitor-General who appeared as Senior Counsel for the Director, does not contend that the orders made by the Judge were outside the area of discretion reserved to Her Honour under the legislation.
Rather, the appeal was pitched on the basis that the Judge overlooked a relevant matter and failed to adequately explain her decision.
For the reasons given by the Chief Justice the appeal on those grounds should be dismissed.
NICHOLSON J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice. I particularly wish to associate myself with his Honour’s more general remarks in [8] to [16] under the heading “The s 24 discretion”.